Upstairs, in Baker’s office, I met him and several others of the White House staff. After a brief discussion we went to the Oval Office to meet the President. We had talked only once before, after his election in 1980 but before his inauguration, at a dinner party given by George and Madeleine Will. Now Reagan went to the point. He said he proposed to nominate me to fill Powell’s seat and asked how I felt about that. I said I had been thinking about the idea for the past five or ten minutes and had decided I liked the idea. Reagan asked, “Does that mean ‘yes’?” I said it did. There was much picture-taking by the official photographer as the President and I sat close together in wing chairs, trying, somewhat stiltedly, to make conversation. Then we and the others went to the press room, which was packed with reporters and television cameras. The President announced his intention to nominate me, and we left without taking questions.
Shortly afterward, I made telephone calls from Howard Baker’s office to leading members of the Senate and others, including one to Lewis Powell. He said he was happy about the nomination and wished me well. I told him I would rather join him on the bench than replace him on it, to which he replied that he would be keeping chambers at the Court, as retired Justices do, and we would see a good deal of each other.
Next, there was a brief strategy session with members of the President’s staff. It was stressed that my nomination was to be a White House rather than a Department of Justice operation. The Department of Justice had become quite unpopular with Democrats who controlled the Senate, a fact that was to prove a considerable handicap in the coming weeks. I returned to my chambers in the courthouse.
That evening, my children, Robert, Charles, and Ellen, were with Mary Ellen and me at home. Some neighbors and other friends dropped in to offer congratulations. I was pleased to have been nominated, of course, but also in a curiously subdued mood that I could not quite shake or explain, even to myself. The only explanation for this slightly somber mood I can think of was that the Court would be the last stage of my career. That may sound odd, even ungrateful, but I do not mean it that way. My professional life had involved just about every major facet of the law, from the intensely practical to the intensely intellectual, and I had enjoyed all of it, and not least the variety. An appointment to the Supreme Court would be a culmination, but it would also be an end, the beginning of the last stage. Perhaps it was the intimation of mortality implicit in that thought that subdued my spirits a bit.
It was also a night when we thought of Claire, who had been with us through so much and who was not here to share this. Mary Ellen, sensing what was on my daughter Ellen’s mind, said to her, “Your mother knows about this,” and Ellen replied, “Yes, I think she does, too.” It was good to think that, and I was grateful to Mary Ellen for having said it.
Though we did not know it that night, we were two and one-half months from the hearing before the Senate Judiciary Committee. Since a delay of that length was virtually unprecedented, we had no reason to anticipate that the Democratic leaders in the Senate would insist upon it. The days that followed were enormously busy. The Department of Justice produced a series of huge briefing books so that I could review every aspect of my career: briefs filed in private practice, briefs filed and arguments made as Solicitor General, my role in the indictment of Vice President Agnew and then in the discharge of Archibald Cox as Special Prosecutor, my writings as a law professor, and my decisions and opinions as a judge. I had to arrange for witnesses to testify on my behalf. There was then, and may still be, a quaint White House institution with the reassuring name of “the murder board.” The nominee sits at a table with perhaps a dozen or more members of the Administration and friendly lawyers from the outside and is subjected to savage questioning. The idea is to prepare him for the hearings to come, rather in the manner that a trainer repeatedly throws a medicine ball at a boxer’s solar plexus. The questions are oversimplifications and put the nominee in the worst light, but, at that, “the murder board” fell well short of the distortions of the actual hearing. More of these sessions were planned, but I found the experience not terribly useful, since I was not concerned about withstanding brutality, and called the rest off. Instead, I had several sessions with lawyers from the White House and the Department of Justice, law school professors, and private practitioners, at which we discussed substantive legal issues.
It was important to discuss substantive issues, because I, unlike other nominees to the Court, would have to discuss them with senators during calls at their offices and with the Senate Judiciary Committee at the hearings. Most nominees are able to respond to substantive questions by saying something like “I cannot discuss legal issues because such matters might come before me as a judge.” I could not take that line, because I had already discussed a great many such issues in print. Some people have said that I, too, should have declined to engage in discussion of legal issues, but that would have been disastrous or, perhaps I should say, even more disastrous than discussing them. It was apparent from Senator Kennedy’s speech after the nomination, and from the public campaign that was already under way, that positions I had taken in the past would continue to be radically misrepresented. If I did not explain at the hearings, those misrepresentations would stand unanswered. A nominee who has not written on the relevant subjects can decline discussion. I could not.
During this period, as well as after the hearings, the public interest generated by the enormous campaign against me caused dozens of reporters to seek interviews, and television and radio talk programs repeatedly asked me to appear. Despite the unanswered hostile campaign, I decided that it was improper for a judicial nominee to wage a counter campaign by discussing his views on substantive issues anywhere but before the Senate, even if that meant letting slanders go unanswered. For that reason, I made it a rule of interviews by print reporters that I would not discuss issues, and I declined to appear at all on television or radio. Toward the end, when it was apparent that the nomination was in very serious trouble, a group of White House strategists proposed that Mary Ellen and I appear on Barbara Walters’ television show. They were so insistent and unanimous in their opinion that we agreed to think about it overnight. But that night we decided we would rather go down than compromise ourselves with what would be, in effect, a personal media appeal. There were advisers who thought refusing to appear on various television shows was a serious mistake, including some who thought it cost me confirmation. However that may be, I continue to think that was the right decision. The entire process of a judicial confirmation was politicized more than ever before in America’s history, but at least I did not contribute to that.
A great many people helped me during those months. Lloyd Cutler, a prominent liberal lawyer and President Carter’s legal counsel, met with me shortly after the nomination and said, “You seem to frighten a lot of people, but I have read everything you’ve written and you don’t frighten me.” Cutler gave a great deal of wise counsel and supported my nomination in public on numerous occasions. For that, he was widely criticized by his liberal allies, but he was unflinching and I admire his integrity.
A. Raymond Randolph, a younger lawyer and a top-flight advocate who had been one of my deputies in the Solicitor General’s Office, gave advice, organized support, and spoke out. Leonard Garment, another prominent Washington attorney, tirelessly lobbied and organized the writing of position papers by lawyers in New York law firms. Carla Hills, now the Special Trade Representative in the Bush cabinet but then in private practice, organized prominent academics and others to write papers analyzing positions I had taken on a wide variety of topics to show that there was nothing extreme about them. Wm. Bradford Reynolds, the Assistant Attorney General for Civil Rights, and Mike Carvin, from the Office of Legal Counsel in the Department of Justice, not only advised me but worked day and night compiling information and responses to accusations made by various senators and liberal activists. My former clerks—Peter Keisler, who was then in the White House Counsel’s Offic
e; John Manning, Brad Clark, and Dan Troy of the Department of Justice; Steve Gilles, who came in from his Chicago law firm; Doug Mayer, who worked in the Washington office of the same firm; and Rebecca Swenson who was working in the Washington office of another firm—all labored mightily. My current clerks, Meg Tahyar, Clark Remington, and Andrew McBride, having no cases to work on since I gave up sitting during this period, also did enormous amounts of work. Dozens of other people were involved either full or part time, and I apologize to those I have not mentioned.
Tom Korologos, a well-known Washington lobbyist, was brought in by the White House to advise me and to supervise efforts to persuade individual senators. I had known Korologos when I was Solicitor General, and he was the Nixon White House’s liaison to the Senate. He was a great support.
Those days of July, August, and the first two weeks of September proved enormously wearing. Not only was there the constant work of preparation and consultation but there were a great many courtesy calls on senators in their offices on Capitol Hill. One, which was obligatory on both sides, was a visit with Senator Kennedy. I went in with one or two persons from the White House assigned to accompany nominees. Kennedy had one or two aides with him in a small room. I was in a fairly cheerful mood but Kennedy seemed mildly depressed and was mostly silent. Others tried, without great success, to keep a conversation afloat. Every so often, Kennedy looked up at me—about three or four times, I suppose—and said, “Nothing personal.”
Each courtesy call was different, and most were interesting. Senator Robert Packwood of Oregon told me he had no problems with any of the rest of my record but if there was the slightest chance I might vote to overturn Roe v. Wade, he would vote against my confirmation. He made it abundantly clear that that was the only issue. That seemed a trifle peculiar, because in his recent reelection campaign Packwood had been opposed by anti-abortion groups and he repeatedly said that a man should not be judged on a single issue but on his entire record. John Chafee of Rhode Island, like Packwood a Republican, also said that preserving Roe v. Wade was the overriding issue for him. Later, three Democratic senators, Bennett Johnston of Louisiana, Harry Reid of Nevada, and Dennis DeConcini of Arizona, in the course of explaining their intentions to vote against me, said I might not vote to overturn Roe.
Senator Jack Danforth of Missouri, who had been a student in the first class I taught at Yale, said he intended to support me and asked that at my hearing I make my position on the proper role of the judiciary entirely clear. He said he had seen too many nominees for various positions back away from their writings at hearings, and he thought it important that the American people understand that the issue was American self-government. I assured him that I would not begin endorsing the judicial creation of the Constitution.
During all of this time there was the incessant barrage of negative advertising, media coverage, a daily flood of mail, and constant telephone calls. The media varied, of course, but the reporting in the New York Times, the Washington Post, and the three network news programs was almost unrelievedly hostile, as, of course, were the advertisements. The campaign was having its effect. The Center for Media and Public Affairs coded 232 TV news and Washington Post stories and found that of 381 judgments by sources 63 percent were negative and 37 percent positive, and that proportion was almost identical at each of the networks and the Post. Sources discussing my ideas ran four to one negative at the Post and six to one at the networks, with CBS well out in front, at eight to one. Throughout July, August, and September, TV news carried eighty-six persons critical of my views and only sixteen who were favorable. After the hearings closed, TV carried twenty-nine critical statements and not one favorable statement.
It was not that so few defenders, or none, were available. Newspapers and television decide whom to ask and whose opinions to carry. According to a journalist, when a reporter wants to express his opinion in a news story, he goes to a source who agrees with him for a statement.1 In that way, a pretense of objectivity is maintained. The Center also analyzed the tag lines of the television network news stories, because bias is usually manifested there. It reported that my nomination held the record for bias among all issues whose reporting the Center had monitored: 100 percent negative on all three networks. I later heard that polls were much more favorable to me among people who had watched the entire hearings than among those who saw only the nightly news.
We take three newspapers in the morning, and I became so sick of the coverage that I asked Mary Ellen not to hand me anything but the sports pages. Nor did I watch television news. The mail and the telephone callers, on the other hand, were almost unanimously friendly and supportive. There were so many letters that there was no possibility of answering the people who wrote, and we finally left the answering machine on day and night to avoid being on the telephone all of the time. We finally decided to go away for two weeks, but it was not much of a vacation since I spent the time with the briefing books and on the telephone. All in all, it was a relief when the date for the hearings drew close and the waiting was over.
What I did not know on July 1 was that activist groups of the left had begun preparing an all-out campaign against my confirmation well before President Reagan announced his nomination. Kennedy’s speech that day was merely the opening salvo. Kennedy later told the Boston Globe that “The statement had to be stark and direct so as to sound the alarm and hold people in their places until we could get material together.”2 The people he wanted to hold in their places were senators who might commit themselves to vote for confirmation before the negative campaign could get rolling.
The campaign against the nomination was so enormous, varied, and widespread that this account can only provide an impression by discussing some of its main features. I shall not attempt to respond to the drumbeat of accusations here, because that went on through the hearings and after. The facts of the matters discussed are set out in Chapter 16. At this point, it is enough to say that every charge recounted was false.
Kennedy’s first goal, according to his own account, was to gain time to organize. He met with three other extremely liberal Democratic senators: Joe Biden, the Chairman of the Judiciary Committee, Howard Metzenbaum, and Alan Cranston. They decided to postpone the committee’s confirmation hearings until September 15, so that a total of seventy-seven days would pass between the President’s announcement and the hearings, although the past average, I am told, had been fourteen days. Kennedy hired Anthony Podesta, the founding president of People for the American Way, whom the Globe identifies as a liberal lobbyist, to work on organizing opposition.
At this point Kennedy launched his Southern strategy to turn the votes of the crucial Southern Democratic senators. Since the Democrats had gained control of the Senate in 1986, the Republicans had to pick up some of these Democratic votes in order to win. Kennedy telephoned Democratic politicians around the South and concentrated on black ministers as well. According to the Globe, “Kennedy woke up Rev. Joseph Lowery at the Hyatt Hotel in New Orleans before the Southern Christian Leadership Conference’s annual convention.” As a result, “Lowery turned the entire day’s meeting into an anti-Bork strategy session. From that meeting, the issue made its way into black churches throughout America.”3 One of Kennedy’s aides is quoted as saying, “It has a special effect when Kennedy calls.”4
He also called each of the thirty executive members of the AFL-CIO and held a conference call with forty state labor leaders to organize their opposition. He knew them well, because he is chairman of the Senate Labor Committee. Kennedy’s other calls were to prominent liberal lawyers and law school professors. He created an enormous apparatus to fight the nomination.
But Kennedy was certainly not alone. A huge coalition of left activist groups, while of course cooperating with Kennedy and other ultraliberal senators, had been preparing and coordinating their efforts. The New York Times reported on July 9 that “civil rights activists had been keeping files on Judge Bork in anticipation of this moment.”
5 The day before the nomination forty-five such organizations were represented at a strategy session held at the Washington office of the Leadership Conference on Civil Rights. The Conference’s nomination statement referred to me as an “ultra conservative” whose confirmation would “jeopardize the civil rights achievements of the past three decades.”6
The activist groups followed the same shock strategy that Kennedy did, and it was an unqualified success. The White House, unprepared for a campaign of this scope and ferocity, did little in the public arena, but the groups sent out wholly misleading information and lobbied the press as assiduously as they did undecided senators. The New York Times front page “news analysis” of July 2 sounded like the Leadership Conference’s statement:
Judge Bork’s record suggests he would move the law of the land sharply to the right on issues like the death penalty, homosexual rights, government aid to religious schools, sexual harassment of women, access to the courts, Presidential power, the constitutionality of the special prosecutor law, antitrust and, perhaps, affirmative action.7
This was a peculiar analysis since the Court held positions very much like mine on most of those issues, and I could hardly change “the law of the land” on the others unless at least four Justices agreed with me.
The Tempting of America Page 36